THE Constitutional Court (ConCourt) has ordered Parliament to review Statutory Instrument 144 of 2022, whichdrastically increased the nomination fees for candidates seeking to run for public office in the August 23 elections.
The ConCourt bench led by Deputy Chief Justice Elizabeth
Gwaunza ruled that Parliament had breached the Constitution by not looking at
whether the statutory instrument (SI) was in contravention of the Constitution
before passing it.
The court ordered Parliament to review the SI by June 16.
The ruling comes after leader of the Nationalists Alliance
Party (NAP), Devine Mhambi Hove filed an application at the court arguing that
Parliament had failed to fulfil its constitutional obligation to consider
whether the SI was in contravention of the Constitution.
In his heads of argument, Hove argued that the Constitution
tasked Parliament to examine all statutory instruments before they are
gazetted.
“As already noted in part 1, the applicant has pleaded that
the obligation in section 152(3)(c) of the Constitution is on Parliament itself
through the Parliamentary Legal Committee.
“Put differently, the obligations imposed by the
Constitution on the Parliamentary Legal Committee are obligations on Parliament
within the contemplation of Section 167(2)(d) of the Constitution.”
The statutory instrument, which was gazetted last year,
increased the nomination fees for presidential candidates from US$1 000 to
US$20 000.
Nomination fees for the National Assembly and the Senate
were increased from US$50 to US$1 000.
When the parties met before a seven-member judges panel on
Friday, Hove, through his attorney, Lovemore Madhuku argued that Parliament
should be held responsible as the Parliamentary Legal Committee (PLC), which
reviews laws before sending them to the Senate, was housed within Parliament.
He argued that the PLC had not fulfil its obligation as it
did not review the law, but rather claimed that it was waiting for the outcome
of a case that is currently pending before the High Court.
“I submit that a proper interpretation of the Constitution,
a duty imposed on a parliamentary committee is a duty imposed on Parliament,”
Madhuku said.
“An obligation of the Parliamentary Legal Committee is
imposed on Parliament.
“The Parliamentary Legal Committee has not done what they
are supposed to do.
“In their heads of argument, they clearly state that they
are waiting for the finalisation of the case pending at the HC.
“We argue that the court finds that the Parliament has
failed, it must say so.
“The PLC must examine the SI and report its findings.
“That outcome is not based on whether it is adverse or not.
“The PLC must tell whether it is constitutional or not.
“Applicant in paragraph 15 makes clear the basis of his
allegation of failure. He says they failed to consider SI 144 and see whether
it went against the Constitution.”
Tawanda Zhuwarara, who was representing Parliament, argued
that the Legislature had fulfilled its constitutional obligation by considering
the SI.
He argued that the application should be dismissed as it
was trying to have the nomination fees reviewed through the backdoor by asking
the Constitutional Court to sit as a court of review.
“Page 22, which is the draft order, asks the court to
declare that in respect of SI, Parliament failed to fulfill its constitutional
obligation under s152(3)(c).
“At record, page 36 you will see that the committee did sit
and consider SI144.
“So you will see that Parliament did do what it is required
to do and they formed an opinion that the SI did not violate the provisions of
the Constitution.
“The applicant says Parliament did not protect his right to
become a candidate.
“For it to be laid to rest, paragraph 22 confesses what the
applicant wants the court to do.
“It says it wants this court to consider what the
appropriate amount the applicant should pay for him to stand as a presidential
candidate.
The PLC examines all the SI before reporting to Parliament,
minister or President if the SI contravenes a section of the Constitution.
“What activates the report is an adverse view that the
Statutory Instrument violates sections of the Constitution.
“The report is then made to Parliament. Parliament consists
of the Senate and National Assembly.
“They then form their own view and decide what they want to
do with the SI. There is a pathway.
“A parliamentary system allows Parliament to analyse the
legal repercussions of the law.
“The PLC did analyse the SI. The problem is that their
decision was something that was not to the liking of the applicant.” Newsday
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